IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Before the Honourable Ms Acting Justice Cloete 
On Thursday, 09 December 2010

In the matter between

And

ORDER

Having considered the papers and having heard Counsel, it is ordered as follows:

1. The First, Second, Third and Fourth Respondents ("the Trust") are interdicted and restrained from causing or permitting any further building or construction work to be undertaken on the remainder of Erf 2681, Paarl ("Erf 2681"), until such time as they have obtained approval of building plans reflecting the construction in fact undertaken or intended to be undertaken on Erf 2681, alternatively, provisional authorisation under s 7(6) of the National Building Regulations and Building Standards Act, 103 of 1977 ("the Act") in respect thereof.
2. The Trust is interdicted and restrained from causing or permitting the operation of the Primi Piatti restaurant or any other restaurant which is not part of a country shop on the remainder of Erf 2681 until such time as all of the following have been granted:

2.1. final approval of the amendment of conditions of re-zoning applicable to the remainder of Erf 2681 permitting the operation of such a restaurant;
2.2. approval of building plans reflecting the construction in fact undertaken or intended to be undertaken on the remainder of Erf 2681, alternatively, provisional authorisation under s 7(6) of the Act in respect thereof;
2.3. an occupancy certificate, alternatively, written permission to use the building under s 14(1 A) of the Act; and
2.4. appropriate trading licences.

3. The Trust shall pay the costs of applicant and fifth respondent, which costs shall include the costs of two counsel, where applicable, and the applicant's costs in respect of the postponement on 13 April 2010, save that the Trust shall not be obliged to pay any wasted costs incurred by applicant and fifth respondent as a result of the matter having to stand down on 14 September 2010, in respect of which fifth respondent shall bear applicant's costs and fifth respondent and the Trust shall each bear their own costs.

ORDER OF COURT

COURT REGISTRAR

IN THE HIGH COURT OF SOUTH AFRICA 

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 

And

REASONS HANDED DOWN ON 9 DECEMBER 2010

Jl CLOETE, AJ

[2] Save as set out below, I am in agreement with the findings of fact and conclusions of law of Moosa J in the reasons handed down by him on 23 September 2010. I accordingly do not consider it necessary to repeat them here, save to highlight the following, namely that:

[3] To my mind, Liebenberg's supplementary replying affidavit deposed to on 15 September 2010 makes it clear that such fears were not premature. I must assume for present purposes that this affidavit was indeed before the court when the interim interdict relief sought by the municipality was argued. It would appear that Moosa J's concern about the fate of the restaurant's employees overrode the consideration of the issue of noise nuisance (which was in any event not the main reason for Liebenberg's application), but that the learned judge was indeed mindful of Liebenberg's position when making the order in the form which he did, particularly at paragraphs 3.2 and 3.3.1.

THE POSITION OF THE EMPLOYEES

[4] It is common cause that, notwithstanding service of the Order in accordance with paragraph 5 thereof, the employees did not make any formal application to intervene in the proceedings prior to the return date.

[6] However, as correctly pointed out by both counsel for the Municipality and Liebenberg, it would be wholly irregular for Mr Schreuder to be afforded the opportunity to effectively adduce evidence from the Bar, and accordingly, this request was refused by me. I did however feel it important, in light of the Order and Reasons of Moosa J, to afford Mr Schreuder an opportunity to place argument before the court as to why the final relief sought by the Municipality and Liebenberg should not be granted.

[7] The high water mark of Mr Schreuder's argument was to the effect that the grant of a final order would be unfair to the employees, many of whom are breadwinners and who have dependants. However he was not able to refer the court to any of the provisions of the Constitution of the Republic of South Africa, Act No 108 of 1996 ('the Constitution") in support of the contention that in the present circumstances, this consideration should override the final relief sought by the Municipality and Liebenberg, nor indeed could he refer the court to any other authorities.

[8] Mr Schreuder conceded that it is in fact the unlawful conduct of the Trust which has placed the employees in the invidious position in which they find themselves and that such remedies as they may have lie, not against the Municipality and Liebenberg , but against the Trust and/or the lessee of the restaurant premises, Windfall 32 Restaurant (Pty) Ltd.

[12] Accordingly, and whilst the court has the utmost sympathy for the affected employees, the blame for the position in which they find themselves must be laid squarely at the doors of the Trust and/or their employer, Windfall 32 Restaurant (Pty) Ltd, the representative of which, so it happens, is the sister of Mr Frater, a co-Trustee of the Trust, and the employees should pursue whatever remedies they have against them. The employees' position cannot in these circumstances have an influence on this court considering whether the final relief sought by the Municipality and Liebenberg should be granted.

THE RELIEF SOUGHT BY THE MUNICIPALITY

[13] On 19 November 2010 the Municipality filed a supplementary affidavit in which its deponent, Mr September, informed this court as follows:

[13.1.] Since the Order of 23 September 2010 the Municipality has given attention to the building plans of the Trust, but the process of approval or rejection of the plans has not yet been finalised;

[13.2.] The Municipality has not yet granted provisional approval to the Trust to proceed with the building works on the property as is envisaged in s 7(6) of the National Building Regulations & Building Standards Act, 103 of 1977 ("the National Building Act");

[13.3.] The Municipality has also not granted permission to the Trust to use the building before the issue of the certificate of occupancy, as provided for in s 14(1A) of the National Building Act;

[13.5.] Notwithstanding the fact that the Municipality anticipates that it will shortly be in a position to grant possible approval in accordance with the provisions of s 7(6) and/or s 14(1A) of the National Building Act, the fact is that, pending the appeal by Liebenberg, the Municipality is not permitted to grant any sort of approval (i.e. whether conditional or otherwise) to the Trust to use the property in light of the provisions of the Land Use Planning Ordinance 15 of 1985 ("LUPO");

[13.6.] Accordingly, the Trust's current use and occupation of the property is unlawful.

[15] In support of the amended relief sought by it, the Municipality submits the following:

[15.4.] An appeal was delivered and is now to be heard by the Western Cape MEC for Environmental Affairs & Development Planning. (It is common cause between the parties that the appeal process can take four to six months, and possibly as long as two years);

[15.5.] Whilst it is true that progress has been made with regard to the regularizing of the building plans and possible occupation and use of the buildings on the erf pursuant to s 7(6) and s 14(1A) of the National Building Act, provisional approval to occupy the buildings does not override the provisions dealing with the permitted use of the erf under LUPO. Use as a restaurant remains unlawful until the amendment of the conditions is finally approved;

[15.9.] Given the provisions of LUPO, the Municipality has a public duty not to allow the buildings on the property to be used in contravention of the current applicable rezoning conditions, and accordingly it seeks an order giving effect thereto.

'148. If a dispute concerning a conflict cannot be resolved by a Court, the national legislation prevails over the provincial legislation or provincial constitution.'

[17] The Trust also contended that the Municipality is furthermore entitled to grant permission to the Trust to temporarily utilise its premises for purposes not otherwise allowed in terms of the current zoning of the property. In support of this submission the Trust relies on s 15(1 )(a)(ii) of LUPO which provides that:

'15(1)(a) An owner of land may apply in writing to the town clerk or secretary concerned, as the case may be -
(ii) To utilize land on a temporary basis for a purpose for which no provision has been made in the said regulations in respect of a particular zone.'

[19] Counsel for the Trust also referred me to s 150 of the Constitution which provides that:

[20] To my mind, the interpretation which I have placed on the relevant legislation achieves the objective set out in s 150 of the Constitution, and, on this interpretation, no conflict results as envisaged in s 148 thereof.

'Dit is die Trust se bedoeling om, sodra aan die aspekte van die Munisipaliteit se skrywes van 07 Oktober 2010 en 15 November 2010 voldoen is, aansoek te doen vir toestemming in terme van Artikel 7(6) & 14(1A) van die Wet op Nasionale Bouregulasies en Boustandaarde Wet 103/1977 asook 15(a)(ii) van "LUPO".

[22] Furthermore, counsel for the Trust confirmed during the course of his argument that no such application has been made.

THE RELIEF SOUGHT BY LIEBENBERG

[24.1.] The relief sought by Liebenberg for the demolition of the illegal building works
'failed';

[24.4.] Liebenberg's application lacked the urgency with which she initially approached the court;

[24.6.] Even on common law grounds Liebenberg failed to establish a case for the final interdict she claimed;

[24.8.] Liebenberg had several other remedies at her disposal;

[24.9.] Liebenberg is advertising her guest house property for sale. From the description of the property in the advertisement the following appears:

[24.9.1.] The noise that Liebenberg submitted as the motivation for her application could either not be heard by her guests or could easily have been curtailed by the application of double-glazing to the windows. These facts were omitted from her founding affidavit;

[24.9.2.] It is suggested by the advertisement that the premises being advertised for sale could be used as a coffee shop and a retail shop. This raises the possibility that Liebenberg's application to this court could at least partially have been motivated by an ulterior purpose, i.e. stifling trade competition by the retail businesses and restaurant on the Trust's adjacent property.

THE GRANTING OF A FINAL ORDER OR AN EXTENSION OF THE RETURN DATE

[27] The three requirements for the grant of a final interdict, all of which must be present are:
[27.1.] A clear right on the part of the applicant(s);
[27.2.] An injury actually committed or reasonably apprehended;
[27.3.] The absence of any other satisfactory remedy available to the applicant(s).

[28] Both the Municipality and Liebenberg have established a clear right. As matters stand at present, the operation of a restaurant and the resumption of any building work is illegal. There is no final approval for the amendment of the existing zoning, nor of the building plans. Although the Municipality has now granted its approval for the amendment of the zoning conditions, an appeal process is underway and accordingly such approval is suspended pending the outcome of the appeal.

'The respondents contended nevertheless that breach did not constitute "injury" for purposes of the second essential requirement for final interdict relief which was expressed in the classic formulation as "injury actually committed or reasonably apprehended". The argument was that "injury" in that phrase had necessarily to entail physical harm or pecuniary loss. The appellants had consequently to show, so the contention proceeded, that the helicopter was unairworthy and that its operation involved risk to life and property.

'As I understand the law, however, where the words "any other ordinary remedy" are used in this context, they do not mean the factual remedy of the plaintiff abating the injury himself by resorting to some physical action. They mean a remedy which is available through the normal processes of the law, such as a claim for damages."

CONCLUSION

J I CLOETE, AJ